Do we need to have probate? Maybe not.

We receive a lot of phone calls from family members when someone has passed away. The questions usually include whether or not a probate of the decedent’s estate will be necessary. Sometimes yes, a particular case falls within legal requirements for a probate in Arizona. Often though, the answer is that a probate may not be required, especially when the decedent is survived by a husband or wife.

Spouses and other couples who are not legally married very often own all their major assets as joint tenants with right of survivorship. As most people know, that means that between the two, when there is a death the survivor will own all the assets that were jointly titled. For example, if there is a house held as a joint tenancy or perhaps as community property with right of survivorship, the surviving owner will take title to that “real property” (real estate) on the death of the other owner. Generally, the recording of a Certificate of Death at the County Recorder’s office will be sufficient to transfer title to the survivor. When an interest in real property is transferred in this way, it does not trigger probate.

The same principle holds true for financial accounts. If one of two joint owners with right of survivorship passes away, the surviving owner will then take title to the account. As with interests in real property, a Certificate of Death needs to be presented to the financial institution. This puts them on notice of the death and allows them to re-title the financial account, putting it in the name of the surviving owner. When title to a financial asset is transferred to a surviving joint tenant, probate of the decedent’s estate is not triggered.

When assets are transferred to a death beneficiary, this too avoids probate. The designation of a death beneficiary is sometimes referred to as “POD” on an account. POD stands for ‚”pay on death.”  There may also be a “TOD‚” which means  “transfer on death‚” However it is expressed, the transfer of an asset to a death beneficiary avoids probate being caused by that asset. Insurance works the same way, with the insurance proceeds going to a beneficiary. There can be death beneficiaries designated on financial accounts such as savings or checking, and other financial instruments such as IRAs.

In Arizona, we are able to use a “beneficiary deed‚” in the same way to keep real property from triggering probate. As stated above, persons who own all their property together as joint tenants can usually avoid probate when one of them passes away. Probate can also usually be avoided when the sole owner of financial or real property leaves the property to a death beneficiary or multiple beneficiaries. So the answer to the question “Do we need to have a probate?‚”may very well be “no‚” if all the decedent’s interest in property has passed to joint owners or death beneficiaries.

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Tucson Estate Planning, Probate and Guardianship Attorney

At the Wood Law Firm, we are committed to providing affordable legal services including estate planning, wills, and probate to those in Tucson and the surrounding community.

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Attorney Henry Wood is a member of various Bar Associations.


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